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Citizens United

Ever since the Supreme Court issued its ruling in the Citizens United case in January, we’ve been warning that the decision would empower corporations to funnel unlimited donations through shadow advocacy groups to directly influence elections.

And guess what? It’s begun.

Just as we (and President Obama) predicted, corporations are already forming and funding political action groups with innocuous sounding names to anonymously support candidates they like and attack candidates they don’t.

For example, the coal industry already has a plan to create a shadow organization to directly advocate against “anti-coal” candidates, obscuring the sources of the organization’s money as they go:

The companies hope to create a politically active nonprofit under Section 527 of the Internal Revenue Code, so they won't have to publicly disclose their activities — such as advertising — until they file a tax return next year, long after the Nov. 2 election.

The U.S. Supreme Court ruled last winter that corporations and labor unions may pour unlimited funds into such efforts to influence elections.

"With the recent Supreme Court ruling, we are in a position to be able to take corporate positions that were not previously available in allowing our voices to be heard," wrote Roger Nicholson, senior vice president and general counsel at International Coal Group of Scott Depot, W.Va., in an undated letter he sent to other coal companies.

Citizens United didn’t just, as some supporters have claimed, allow corporate voices to be heard; it granted corporations unprecedented influence in democratic elections while permitting them to hide their involvement. It’s shadow organizations like this that make one wonder: why are Senate Republicans filibustering the DISCLOSE Act, which would help make corporate involvement in elections more transparent?

Meanwhile, the Minnesota gubernatorial race is providing another textbook example of the problems Citizens United is already causing for our democracy. Taking advantage of their new ability to pour limitless money into elections, several big corporations, including the retail giant Target, donated $100,000 each to a shadow group called Minnesota Forward, which has already produced an ad for Republican gubernatorial candidate Tom Emmer.

Public reaction to Target’s involvement in the race shows just why many politically involved corporations would prefer to remain anonymous:

Emmer is well known as a hardline conservative on social issues. For instance; he opposes gay marriage — a stance that angers some of Target's employees and customers. The company has been known for its gay-friendly employment policies.

Target CEO Gregg Steinhafel tried to address such concerns today with a letter to employees. He wrote, that "inclusiveness remains a core value of our company." That said, he added, "I consider it my responsibility to create conditions in which Target can thrive." And Minnesota Forward has pegged Emmer as the pro-growth candidate.

If the Senate had passed the DISCLOSE Act yesterday, Minnesota Forward would have to be a lot more forthcoming about the sources of its funding. As long as DISCLOSE is filibustered, the group has a lot more leeway for behind-the-scenes political activity. (And, until Congress passes a Shareholder Protection Act, even Target’s shareholders won’t be able to have a say in which political candidates their money is going to support). Voters and consumers have the right to know whether a corporation’s political money is where its mouth is.

Five of the nation’s largest health insurers are in serious discussions about creating a new nonprofit group and bankrolling it to the tune of about $20 million to influence tight congressional races and boost the image of their industry.

… “The objective is to make the House more accommodating to concerns that have been raised,” says one industry source. “They’re looking at toss-up candidates,” adding that the companies want to “focus resources to influence campaigns.”

Needless to say, like the coal companies, health insurance groups will not have to make their donations to such an advocacy organization public.

A stunning 85% of Americans agree that corporations already have too much influence on our elections; now we have proof that the Citizens United ruling is giving corporations even more power in our democracy. The proliferation of shadow groups doing the dirty work of big corporations makes the task of amending the Constitution to protect our elections from corporate money all the more urgent.

Republicans succeeded today in blocking Senate consideration of the DISCLOSE Act, a modest first attempt to start reigning in the money-in-politics free-for-all the Supreme Court set loose in January’s Citizens United decision.

The successful filibuster of DISCLOSE is frustrating, but it makes one thing very clear: the only way for voters to fully take back our democracy is to pass a Constitutional Amendment undoing the damage of Citizens United.

After the Senate’s vote on DISCLOSE, Sen. Max Baucus introduced a resolution calling for just such an amendment:

The impact of Citizens United goes well beyond merely changing campaign finance law. This decision will impact the ability of Congress, as well as State and local legislatures, to pass laws designed to protect its constituents—individual Americans—when such legislation comes under fierce objection by large corporations. Corporations are now free to spend millions targeting individual lawmakers. Lawmakers’ ability to pass laws such as consumer safety or investor protection now faces even greater challenges when such laws merely threaten the corporate bottom line.

Congress and the American people must respond swiftly and firmly. The Supreme Court’s ruling in Citizens United has severely altered Congress’s ability to limit corporate spending in our electoral process.

The amendment simply returns the power of regulating election spending to Congress and the states. Here it is in its entirety:

Section 1. Congress shall have the power to regulate the contribution of funds by corporations and labor organizations to a candidate for election to, or for nomination for election to, a Federal office, and the power to regulate the expenditure of funds by corporations and labor organizations made in support of, or opposition to, such candidates.

Section 2. A State shall have the power to regulate the contribution of funds by corporations and labor organizations to a candidate for election to, or for nomination for election to, public office in the State, and the power to regulate the expenditure of funds by corporations and labor organizations made in support of, or opposition to, such candidates.

Section 3. Nothing contained in this Amendment shall be construed to allow Congress or a State to make any law abridging the freedom of the press.”

We’ve asked all federal elected officials and candidates to sign on to a pledge to support a Constitutional Amendment to reverse Citizens United. Find out more at www.pledgefordemocracy.org.

Some conservatives are still trying to argue that the Supreme Court is in danger of being overrun by “liberal activists.” But an article in Sunday’s New York Times, entitled “Court Under Roberts Is Most Conservative In Decades,” presented data from political scientists that pretty conclusively showed a conservative, not a liberal, ideology entrenched in the highest court.

One piece of data really stood out to me:

Four of the six most conservative justices of the 44 who have sat on the court since 1937 are serving now: Chief Justice Roberts and Justices Alito, Antonin Scalia and, most conservative of all, Clarence Thomas. (The other two were Chief Justices Burger and Rehnquist.) Justice Anthony M. Kennedy, the swing justice on the current court, is in the top 10.

That’s right: the current “swing” justice is considered one of the ten most conservative judges of the past 70 years. Centrist justices are in some ways even more important than the Court’s ideologues or even chief justices. As the Times article notes, the court’s most extreme shift to the right occurred when Justice O’Connor was replaced with the much more conservative Justice Alito:

By the end of her almost quarter-century on the court, Justice O’Connor was without question the justice who controlled the result in ideologically divided cases. “

On virtually all conceptual and empirical definitions, O’Connor is the court’s center — the median, the key, the critical and the swing justice,” Andrew D. Martin and two colleagues wrote in a study published in 2005 in The North Carolina Law Review shortly before Justice O’Connor’s retirement.

With Justice Alito joining the court’s more conservative wing, Justice Kennedy has now unambiguously taken on the role of the justice at the center of the court, and the ideological daylight between him and Justice O’Connor is a measure of the Roberts court’s shift to the right.

The statistics back up a right wing trend on the Supreme Court that has been hard to ignore. Since Alito joined the Court, it has made startling decision after startling decision, including overturning democratically enacted restrictions on corporate spending in Citizens United v FEC, and defending discrimination against women in the workplace in Ledbetter v Goodyear.

Just one justice can make the difference between democratically enacted campaign finance laws and unlimited corporate spending in elections; between employment discrimination laws that work for employees and those that work for employers; between our democracy holding corporations accountable and corporations owning our democracy.

All of which is why, when we talk about presidents and senators, we have to talk about the Court.

President Obama this afternoon urged the Senate to pass the DISCLOSE Act, which it begins debate on today. The president said the transparency bill was a necessary response to the Supreme Court's decision in Citizens United v. FEC:

Because of the Supreme Court’s decision earlier this year in the Citizens United case, big corporations –- even foreign-controlled ones –- are now allowed to spend unlimited amounts of money on American elections. They can buy millions of dollars worth of TV ads –- and worst of all, they don’t even have to reveal who’s actually paying for the ads. Instead, a group can hide behind a name like “Citizens for a Better Future,” even if a more accurate name would be “Companies for Weaker Oversight.” These shadow groups are already forming and building war chests of tens of millions of dollars to influence the fall elections.

He also had harsh words for the Senate Republican leadership, who have been working against the passage of DISCLOSE:

At a time of such challenge for America, we can't afford these political games. Millions of Americans are struggling to get by, and their voices shouldn’t be drowned out by millions of dollars in secret special interest adverting. The American people's voices should be heard. A vote to oppose these reforms is nothing less than a vote to allow a corporate and special interest takeover of our elections.

The DISCLOSE Act would requiring prompt and full disclosure of corporate campaign expenditures and prevent campaign spending by government contractors, TARP fund recipients, and foreign-controlled corporate subsidiaries.

When we commissioned a poll to gauge what Americans thought about the Supreme Court’s decision in Citizens United v. FEC, we expected to find strong opposition to the idea of unlimited corporate influence in elections. But even we were stunned by how strong that opposition was. 85% of those surveyed disagreed with the Supreme Court’s decision to give corporations unlimited power to spend in elections, and 74% supported a Constitutional Amendment to reverse it.

Today, in a packed Netroots Nation panel organized by People For, activists and elected officials gave their loud and clear endorsement of a Constitutional Amendment to undo Citizens United and return elections to voters.

The audience responded with a standing ovation when panelist Rep. Donna Edwards declared her support for an amendment saying, “Let’s not let anything undo our power over our elections.”

Edwards spoke about the pressure members of Congress face from the health care and energy lobbies, and other powerful interests. “We cannot afford in this country to have elected officials afraid to stand up to that,” she said.

Corporate interests, Edwards said, “are not just trying to influence the process, they want to own the process.”

In Congress, Rep. Alan Grayson added, a corporate lobbyist “can walk into your and office, say ‘I have $5 million, and I can spend it for you or against you.’…this really is a threat to our democracy.”

All of the panelists, including Public Citizen’s Robert Weissman, Lisa Graves of the Center for Media and Democracy, and People For’s Marge Baker, agreed that passing a Constitutional Amendment wouldn’t be easy, but is necessary.

Baker called the Citizens United decision “radical, dangerous, and pernicious,” and emphasized the opportunity it creates for progressives to reclaim the debate over the courts as we work to reverse it.

“Citizens United is one of the all time worst Supreme Court decisions in the history of the United States,” Weissman said, “It’s certain that it’s going to be overturned. The question is, are we going to overturn it in the next 4-5 years, or wait 50 years.”

Graves added that Americans have managed to amend the Constitution throughout our history. “They did it with the Pony Express,” she said, “and we have Web 2.0”

Today’s vote is a step towards achieving a Supreme Court that understands the way the law affects individual Americans. In her hearings, Solicitor General Kagan made clear that, unlike the current Court, she understands that corporate interests shouldn’t be allowed to run rampant over the rights of individual Americans.

It’s frankly puzzling that the GOP seems dead set on opposing that principle. Throughout much of the hearings, Republican senators lavished praise on Citizens United v. FEC, a decision that gave corporations unchecked rights to buy elections and which most Americans abhor. Given the national outrage at companies like BP and Goldman Sachs, it’s surprising that the GOP would expend so much breath pining for a Supreme Court Justice who would give even greater deference to corporations while slamming the door on individual Americans fighting for their rights.

Apparently, the ‘Party of No’ can’t stop from saying ‘Yes’ to corporate interests who want to get their way in the Supreme Court.

Fortunately for the country, the GOP has been unable to block the confirmation of this supremely qualified nominee. But as we’ve noted, their largely under-the-radar obstructionism on lower priority nominations is still going strong.

Today, People For the American Way and Public Citizen launched a new campaign to get the ball rolling on a Constitutional Amendment to kick corporate money out of elections.

In January, the Supreme Court overturned a policy that was more than a century-old to allow corporations to spend millions of dollars from their treasuries to influence elections. To get to that decision, in the case of Citizens United v. FEC, the Court determined that corporations have the same free speech rights as individuals.

This reasoning, and the conclusion it led to, have been soundly rejected by Americans across the political spectrum. A poll we commissioned last month found that 85% of Americans disagree with the Court’s conclusion that the First Amendment allows corporations to spend whatever they like on elections, and 77% wanted to amend the Constitution to undo it.

What’s more, 74%--including majorities of Democrats, Republicans, and independents-- said they’d be more likely to vote for a candidate who pledged to work for a Constitutional Amendment to undo Citizens United.

We saw this as a clear call to action. So we joined up with Public Citizen to create www.PledgeForDemocracy.org and start making a Constitutional Amendment a reality.

Here’s how it works. We’ve written up a pledge for federal candidates to sign, committing them to work towards a Constitutional Amendment to return our democracy to voters. It reads:

The Supreme Court's flawed decision allowing corporations to spend unlimited amounts to influence election outcomes endangers our democracy and threatens to drown out the voices of individual citizens. I pledge to protect America from unlimited corporate spending on our elections by supporting a Constitutional amendment to overturn the Supreme Court's decision giving corporations the same First Amendment rights as people.

If you support a Constitutional Amendment, contact your representatives and candidates in your area and urge them to sign the pledge. Then get back to us and let us know what they said. We’ll keep track of contacts to candidates and officials, and publicize which candidates sign the pledge and which refuse to sign it.

We know that elections belong to voters…it’s time for elected officials to show they agree.

Today I went back to the Heritage Foundation for their annual “Scholars and Scribes” panel reviewing the recent and upcoming activities of the Supreme Court. There was some discussion of judicial activism, but most of the panelists seemed to have finally given up on the claim that conservative Justices have acted as neutral “umpires” in the past year.

What is surprising is that, now that the Court’s decision in Citizens United ruined the “judicial activism” mantra for the Right, a new tactic has apparently taken hold. During a question and answer session, conservative legal scholar Richard Epstein echoed Senator Jeff Sessions in comparing the Citizens United decision to, of all things, Brown v. Board of Education. His take was slightly different and, if possible, even more unhinged from reality. Those of us who oppose and are working to overturn the Citizens United ruling, Epstein said, “look a little bit like the same kind of massive resistance” engendered by Brown v. Board.

To compare the 93% of Americans who think that there should be limits on corporate political spending to the recalcitrant racists who tried to stop the desegregation of public schools is absurd and offensive. If conservatives are trying to paint corporations as victims akin to those who have suffered from institutionalized racism, they’re going to be fighting an uphill battle.

Tom Goldstein at SCOTUSblog has done an impressive analysis of the Supreme Court’s decisions this term, and found several surprising results. Among these is pretty clear evidence that Justice Clarence Thomas, one of the most conservative Justices on the court, is also by far the most willing to rewrite established law and overrule judicial precedent:

Among all the Justices, it is in fact Scalia and Thomas – frequently heralded by conservatives as ideal members of the Court – who hesitate the least in invalidating legislation or (with respect to Thomas) calling for the overruling of prior precedent. They not only joined the Citizens United majority, but they would also have held unconstitutional the “honest services” statute (Skilling), the civil commitment statute (Comstock), and the ruling upholding a beach-erosion statute (Stop the Beach).

You do have to feel for the big corporations who were being discriminated against before the Supreme Court decided they could spend unlimited amounts of money in elections, right? Jeff Sessions, for one, is standing up for corporate underdogs who have fallen victim to moral injustice. Talking Points Memo reports:

Last night, elaborating on his criticisms of former Supreme Court Justice Thurgood Marshall, Sessions made the unusual comparison of Citizens United v. FEC to Brown v. Board of Education of Topeka.

"[Marshall] was right on Brown v. Board of Education. It's akin in my view to the Citizen's United case. The court sat down and we went back to first principles--What does the Constitution say? Everybody should be equal protection of the laws," Sessions told me after a Senate vote last night.

"Is it treating people equally to say you can go to this school because of the color of your skin and you can't?" Sessions asked rhetorically. "We've now honestly concluded and fairly concluded that it violates the equal protection clause."

Come again?

Let’s break this down into a few points that I guess we shouldn’t assume are obvious:

Brown v. Board of Education ended the systematic segregation of the American school system. Citizens United v. FEC struck down a law that didn’t let corporations spend as much as they wanted to on electioneering communications.

The GOP has spent a large part of the past two days attacking Justice Marshall for what they call his “activist” judicial philosophy. They define that philosophy as an insufficient reverence for the Constitution as originally written and intended.

Brown v. Board of Ed (which Marshall argued) is a classic example of a case in which the Supreme Court interpreted part of the Constitution—the 14th Amendment—in a way at odds with the original intent of its writers, but in line with evolving social mores and values. Elena Kagan made that very point herself this morning, as did former Justice David Souter a few weeks ago.

Sessions says that the same philosophy led to Brown v. Board and Citizens United, but continues to slam Thurgood Marshall, the architect of the Brown argument, while praising the results of Citizens United.

The confusing logic aside, the main point here is that Sessions just compared limits on corporate spending in elections with systematic racial segregation. This is the top Republican on the Senate Judiciary Committee. And abstract arguments about judicial philosophy aside, that’s just appalling.

Sen. Orrin Hatch spent his entire question time lambasting the arguments Kagan made as Solicitor General defending campaign finance limits in Citizens United v. FEC, and trying to get Kagan to express her personal views on the case. She declined.

“I want to make a clear distinction,” Kagan said, “between my role as an advocate and any opinions I might have as a judge.”

The result was something of a half-hour soapbox for Sen. Hatch to heap praise on Citizens United (and criticize its critics) while Kagan repeatedly distanced herself from the issue. Hatch might want to take a look at our recent poll, which shows that the critics of Citizens United include the majority of Americans.

It’s remarkable that Hatch, who has always spoken so highly of judicial restraint, is so happy to have judges overruling acts of Congress. Apparently he’s changed his opinion on “judicial activism.”

Democratic Senators used the opportunity of Elena Kagan’s Supreme Court confirmation hearings today focus attention on nine people who were not in the room. The Senators called the Roberts Court out for some of its more outrageous decisions as they began to reframe the debate on the role of the Court and the Constitution. Central to the discussion was the Court’s decision in Citizens United v. FEC, in which it overturned a century of settled law to allow corporations to spend unlimited amounts of money to influence elections.

Russ Feingold of Wisconsin, was one of the chief designers of the campaign finance rules that the Supreme Court knocked down in Citizens United. He said:

[W]hen a decision like the one handed down earlier this year by a 5-4 vote in the Citizens United case uproots longstanding precedent and undermines our democratic system, the public’s confidence in the Court can’t help but be shaken. I was very disappointed in that decision, and in the Court for reaching out to change the landscape of election law in a drastic and wholly unnecessary way. By acting in such an extreme and unjustified manner, the Court badly damaged its own integrity. By elevating the rights of corporations over the rights of people, the Court damaged our democracy.

Only last week, the Rent-A-Center decision concluded that an employee who challenges as unconscionable an arbitration demand must have that challenge decided by the arbitrator. And the Citizens United decision -- yet another 5-4 decision -- created a constitutional right for corporations to spend unlimited money in American elections, opening our democratic system to a massive new threat of corruption and corporate control. There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.

Ted Kaufman of Delaware told Kagan, “I plan to spend the bulk of my time asking you about the Court’s business cases, based on my concern about its apparent bias.”

The Court’s decision last fall in the Citizens United case, which several of my colleagues have mentioned, is the latest example of the Court’s pro-corporate bent. The majority opinion in that case should put the nail in the coffin of claims that “judicial activism” is a sin committed by judges of only one political ideology.

What makes the Citizens United decision particularly troubling is that it is at odds with what some of the Court’s most recently confirmed members said during their confirmation hearings. We heard a great deal then about their deep respect for existing precedent. Now, however, that respect seems to vanish whenever it interferes with a desired pro-business outcome.

Now, you’ve heard a lot about this decision already today, but I want to come at it from a slightly different angle.There is no doubt: the Roberts Court’s disregard for a century of federal law—and decades of the Supreme Court’s own rulings—is wrong. It’s shocking. And it’s torn a gaping hole in our election laws.

So of course I’m worried about how Citizens United is going to change our elections.

But I am more worried about how this decision is going to affect our communities—and our ability to run those communities without a permission slip from big business.

…

Citizens United isn’t just about election law. It isn’t just about campaign finance.

It’s about seat belts. It’s about clean air and clean water. It’s about energy policy and the rights of workers and investors. It’s about health care. It’s about our ability to pass laws that protect the American people even if it hurts the corporate bottom line.

Sen. John Cornyn was waxing indignant a few minutes ago about what he calls the “activist vision” of certain judicial nominees.

He helpfully defined his terms:

“This activist vision takes the power from the people to make the law and change the law and gives it to the judiciary.”

Cornyn was no doubt shocked, then, by the Rehnquist Court’s decision in Bush v. Gore, in which it called off the counting of votes in a presidential election. Or by the Roberts Court’s decision in Citizens United v. FEC, in which it limited the power of democratically elected bodies to make rules about who spends money in elections.

It must be difficult for Cornyn to see judges appointed by presidents of his own party fall into that kind of activism.

In his opening remarks in Solicitor General Elena Kagan’s Supreme Court confirmation hearings, Senate Judiciary Committee chairman Patrick Leahy put the Court’s decision in Citizens United v. FEC at the front and center of the debate.

It is essential that judicial nominees understand that, as judges, they are not members of an administration. The courts are not subsidiaries of any political party or interest group, and our judges should not be partisans. That is why the Supreme Court’s intervention in the 2000 presidential election in Bush v. Gore was so jarring and wrong. That is why the Supreme Court’s recent decision in Citizens United, in which five conservative Justices rejected the Court’s own precedent, the bipartisan law enacted by Congress, and 100 years of legal developments in order to open the door for massive corporate spending on elections, was such a jolt to the system.

We hope to hear a lot more about Citizens United in the next few days—a ruling that a recent PFAW poll showed that 77% of Americans want to amend the Constitution to undo.

In a ruling that may bode well for the longevity of the campaign finance disclosure law currently being considered by Congress, the Supreme Court today ruled that the First Amendment does not give people a blanket right to keep their political activity under wraps. But the Justices disagreed on the extent to which the First Amendment allows privacy for controversial political activity.

The case, Doe v. Reed, was brought by a group of people who had signed a petition to put a measure on the ballot in Washington that would have voided the state’s domestic partnership laws. Washington’s law says that the names on such petitions have to be publicly available. The group of plaintiffs argued that the exposure of their names would expose them to harassment, therefore violating their First Amendment rights. The Supreme Court, in an 8-1 decision, disagreed that the disclosure law was unconstitutional on its face, but left the door open for the anti-marriage equality petitioners to claim the law was an unfair burden in their specific case.

The spread of the justices’ opinions on the specific case of Protect Marriage Washington shows their ideological differences on the subject—and could shed light on what will happen if the Court considers something like the DISCLOSE Act.

There were several separate opinions. Justice Alito wrote a separate concurrence that is quite sympathetic to the plaintiffs’ as-applied challenge on remand. Justice Sotomayor wrote a concurring opinion, joined by Justices Stevens and Ginsburg, that is very doubtful about that challenge. Justice Stevens also wrote his own concurring opinion, joined by Justice Breyer, to make the same point, albeit perhaps not as strongly, while Justice Breyer wrote a separate concurring opinion indicating that he doesn’t think that Justice Stevens’ opinion is inconsistent with the Chief Justice’s opinion. Justice Scalia wrote a concurring opinion which takes the position that such a First Amendment claim could never prevail. Justice Thomas was the only dissenter; he would have held that the plaintiffs prevailed on their broad facial challenge to the disclosure provision.

The plaintiffs, having lost their broad facial claim, thus also face significant difficulty in prevailing in their remaining challenge to the disclosure of their identities with respect to this specific referendum. Justices Thomas and Alito are obviously sympathetic to that claim. But five Justices – a majority of the Court – take the opposite view; Justice Scalia rejects it outright and the four more liberal members of the Court express significant doubts about the claim’s viability.

Rachel wrote earlier today about Justice Scalia’s vocal support for transparency laws, and his opinion in Doe v. Reed confirms that he walks his talk. As Goldstein calculates, if a campaign finance disclosure law comes before the Supreme Court, Scalia’s vote could break up the Citizens United majority and shift the Court’s majority toward disclosure and transparency.

As our recent poll shows, 92% of Americans agree that Congress needs to take action to right the wrongs of the Citizens United decision. One way to start would be to pass a bill like the DISCLOSE Act to force big corporations to publicly reveal the money they spend to influence elections. Proponents of such legislation may worry that the corporate-leaning Supreme Court will overturn the bill after it’s passed – but they shouldn’t worry too much. With the exception of Justice Thomas, none of the Supreme Court Justices have expressed hostility to disclosure requirements - in fact, the most well known conservative Justice on the Court may even be an advocate. As SCOTUSblog pointed out in May, Justice Scalia has been a vocal supporter of transparency in democracy:

Justice Scalia [has] expressed the strong view that disclosure requirements do not implicate significant First Amendment concerns. To the concern that disclosure could deter expression, Justice Scalia responded, “[T]he fact is that running a democracy takes a certain amount of civic courage.”

This may be one of the only instances in which Justice Scalia is in line with the majority of Americans. As our recent poll shows, 89% of Americans support the transparency legislation like the DISCLOSE Act, although many (62%) believe such legislation wouldn’t go far enough to correct the outrageous Citizens United decision.

The American people are right again: just forcing corporations to disclose their political activities can’t fix Citizens United’s dangerous assertion that the 1st amendment guarantees unlimited corporate spending on elections, and conservative Justices – Scalia included – are likely to overturn any legislation that would. That’s why 77% of Americans believe that we need a constitutional amendment to insure that our democratic system isn’t drowned in corporate money. And 74 % say they would be more likely to vote for a candidate for Congress who pledged to support a Constitutional Amendment limiting corporate spending on elections.

UPDATE: The Supreme Court has weighed in more on the value of political disclosure in today's decision in Doe v. Reed. We'll post more on that later this morning.

As a new arrival in DC (I started interning here two weeks ago), I was thrilled to get a chance to visit the Heritage Foundation for the first time on Wednesday. I know everyone here at People For was flattered to learn that the folks on their “Myth of the Conservative Court” panel had been reading our Rise of the Corporate Court report. A lot.

The panelists – Todd Gaziano, Hans von Spakovsky, and Manuel Miranda -- took umbrage at progressive groups like PFAW using the term “judicial activism” because, well, it belongs to them. And they like the decisions being handed down!

Spakovsky argued that progressives have called the Citizens United decision judicial activism merely because we didn’t like the outcome. He’s certainly right that we don’t like it—and neither do 80% of Americans—but we agree that our dislike doesn’t make it judicial activism. What makes it judicial activism is that the Court based its decision on utterly specious Constitutional grounds, overturning over a hundred years of settled law and its own precedent in the process. John Roberts promised to be a baseball umpire, just calling balls and strikes, but as PFAW President Michael B. Keegan pointed out, “in baseball terms, Citizens United was the equivalent of grabbing the bat and using it to beat the pitcher.”

Much to my shock, Gaziano admitted during the panel that the conservatives on the Court had exhibited pro-corporate judicial activism in one case, Exxon Shipping Co. v. Baker, deciding in Exxon’s favor for subjective rather than purely Constitutional or statutory reasons. So what makes him think that the Conservative judges weren’t influenced by their corporate bias in the other cases outlined in our Corporate Court report?

What was most remarkable about the panel, though, probably wasn’t the contortions that conservatives are willing to go through in order to deny “judicial activism” by conservatives on the Court—it’s that they’re still clearly trying to use it against progressives. That and the lunch they served afterwards. It was delicious.

In the wake of the Citizens United decision, the Supreme Court may choose to determine whether corporations have additional rights to free speech under the First Amendment. On June 24th, justices will meet to decide whether to hear a group of cases the government has brought against Big Tobacco, and the court will announce its decision the following Monday, the first day of Elena Kagan’s confirmation hearings.. At issue are a host of First Amendment issues, namely a corporation’s right to make assertions that may be fraudulent, in the interest of trying to influence public policy. To say the least, the cases are complicated. According to a lawyer representing Big Tobacco,

“Some law clerk at the Supreme Court is probably pulling his hair out as we speak,” said Jones Day partner Michael Carvin, who represents R.J. Reynolds Tobacco Company and Brown & Williamson Holdings, Inc. before the Supreme Court. “It's like a jigsaw puzzle.”

These cases demonstrate the potentially far reaching effects of the Court’s radical decision in Citizens United, which first recognized a First Amendment right to speech for corporations in the form of independent expenditures on elections. Now, corporations are seeking even more free speech protections.

“Tobacco company briefs cite the Citizens United decision for the proposition that they too deserve First Amendment protection for statements they made about the health effects of tobacco, statements that helped form the basis of the government suit under the Racketeer Influenced and Corrupt Organizations (RICO) law. In many of the tobacco company briefs, the First Amendment argument is the leading issue.”

The tobacco companies are responding to the DC Circuit’s finding that Big Tobacco’s advertising that claimed smoking was not harmful violated RICO. In contrast, documents presented to the court confirm that Philip Morris knew cigarettes were harmful, and released the advertisements in spite of this information.

The government presented evidence from the 1950s and continuing through the following decades demonstrating that the Defendant manufacturers were aware—increasingly so as they conducted more research—that smoking causes disease, including lung cancer. Evidence at trial revealed that at the same time Defendants were disseminating advertisements, publications, and public statements denying any adverse health effects of smoking and promoting their “open question” strategy of sowing doubt, they internally acknowledged as fact that smoking causes disease and other health hazards.

An added complication to these cases is that Elena Kagan, if confirmed as a Supreme Court justice will likely have to recuse herself from deliberations, because she was Solicitor General in February, when the United States filed its petition for the Supreme Court to hear one of the cases.

The cases, depending on how many the court chooses to accept, will likely turn on a test of equitable balance between the government’s interest in preventing fraud, and a corporation’s interest in defending itself.

“This is an enormously powerful tool for the government,” said Carvin. “If you knock out corporations from public debate, that's pretty frightening stuff … The Washington Legal Foundation and the Chamber of Commerce of the United States have also filed briefs emphasizing the First Amendment issue among others. But Crystal asserts that “you don't have a First Amendment right to commit fraud.” Carvin replies that “yes, you can stop someone from saying that his cereal stops cancer,” but the kind of statements at issue in the tobacco cases amount to “classic public policy speech” that deserve First Amendment protection.

Given the likely absence of Kagan on the bench, and the recent pro-business history of the Roberts Court, it’s fair to assume that corporations will find themselves with even more powers under the First Amendment. It is a truly scary notion for the average American, and something that further highlights the damage Citizens United will have on the rights of individuals in our democracy.

We’ve said repeatedly that Elena Kagan’s Supreme Court confirmation hearings, which start in two weeks, open up the perfect opportunity to the country to have a real discussion of the meaning of the Constitution and the role of the Supreme Court in all of our lives.

Today, we’ve tried to start the conversation by coming up with 20 questions that we would love to see senators on the Judiciary committee ask Kagan.

We want to know Kagan’s answers to questions including:

Should Justices respect the original intent of the Constitution’s framers, even when that intent is antithetical to our current values and the Constitution as amended?

Does the Constitution give corporations the same First Amendment rights as ordinary citizens?

Has the Supreme Court, in cases like Bush v. Gore and Citizens United v. FEC, practiced proper judicial restraint?

What theory would govern your evaluation of civil rights laws passed by Congress?